HRA AgendaHOPKINS HRA SPECIAL MEETING
June 18, 2013
7 p.m.
I. CALL TO ORDER
II. NEW BUSINESS
ITEM 2013-05 Public Hearing on the sale of land at 20 and
24 Shady Oak Road
Recommendation: approve execution of the purchase and
development agreement between Hopkins HRA
and Mokabaka, LLC
Board Action:
III. ADJOURNMENT
Board Action:
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HOPKINS HRA SPECIAL MEETING
June 18, 2013
7 p.m.
I. CALL TO ORDER
II. NEW BUSINESS
ITEM 2013-05 Public Hearing on the sale of land at 20 and
24 Shady Oak Road
Recommendation: approve execution of the purchase and
development agreement between Hopkins HRA
and Mokabaka, LLC
Board Action:
III. ADJOURNMENT
Board Action:
-4m
City of uo1)5,8
June 13, 2013
PUBLIC HEARING — SALE OF LAND
Proposed Action
HRA Report 2013-05
Staff recommends adoption of the following motion: Following the public hearing on the
sale of land between the Hopkins Housing & Redevelopment Authority and Mokabaka,
LLC move to approve the Purchase and Development Agreement.
With this motion, the Purchase and Development Agreement will be executed at the
closing on the purchase of 20 & 24 Shady Oak Road. It is understood that minor
modifications to the agreement may be made prior to execution.
Overview
In 2014, Hennepin County, in partnership with the cities of Hopkins and Minnetonka, will
begin construction on the widening of County Road 61, also known as Shady Oak
Road. This project will require the acquisition of additional right-of-way. In order to
maximize the benefits of the road project and minimize the impacts, Hennepin County
awarded the cities $3 million in Community Works funds to conduct a variety of activities
including property acquisition, demolition and construction of new parking areas.
The City of Hopkins has been in negotiations with several of the property owners and is
now in a position to move forward with three property acquisitions that will utilize the
Community Works funds to create redevelopment opportunities and replacement
parking in the corridor.
One of the conditions of the purchase agreement for the Mokabaka property is the
HRH's transfer of the redevelopment property at 20, 24 and 108 Shady Oak Road for $1
to Mokabaka for redevelopment purposes. The public hearing is a requirement for the
transfer of land contemplated under the Purchase Agreement and associated Purchase
and Development Agreement.
Primary Issues to Consider
The purchase agreement related to this item was approved at the June 4, 2013, HRA
meeting. Holding a public hearing on the transfer of land presumed under the Purchase
Agreement, and subsequent Purchase and Development Agreement, is required under
state statute.
Suanortina Documents
• Purchas and Development Agreement with Mokabaka LLC
Ke sten verum
Director'of Planning & Development
Execution Draft
PURCHASE AND
DEVELOPMENT AGREEMENT
By and Between
HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE
CITY OF HOPKINS
and
MOKABAKA LLC
Dated: , 2013
This document was drafted by:
BRADLEY & DEIKE, P. A.
4018 West 65th Street, Suite 100
Edina, MN 55435
Telephone: (952) 926-5337
TABLE OF CONTENTS
Page
PREAMBLE 1
ARTICLE I
Definitions
Section 1.1. Definitions 2
ARTICLE II
Representations
Section 2.1. Representations by the Authority 5
Section 2.2. Representations by the Redeveloper 5
ARTICLE III
Conveyance of Property
Section 3.1.
Development Proposal
7
Section 3.2.
Agreement to Sell
7
Section 3.3.
Conditions Precedent to Conveyance
7
Section 3.4.
Title
8
Section 3.5.
Demolition; Environmental Matters
9
Section 3.6.
Closing; Taxes
10
Section 3.7.
Access to Property
10
Section 3.8.
Copies of Reports
10
Section 3.9.
Lease of Acquired Property
l 1
ARTICLE IV
Construction of Improvements
Section 4.1. Construction of Minimum Improvements 12
Section 4.2. Construction Plans 12
Section 4.3. Commencement and Completion of Construction 13
(i)
ARTICLE V
Insurance
Section 5.1. Insurance 15
ARTICLE VI
Leasing Minimum Improvements
Section 6.1. Prohibited Uses 16
ARTICLE VII
Financing
Section 7.1. Financing 17
Section 7.2. Limitation on Encumbrance of Property 17
Section 7.3. Subordination 17
ARTICLE VIII
Prohibitions Against Assignment and Transfer; Indemnification
Section 8.1. Prohibition Against Transfer of Property and
Assignment of Agreement 18
Section 8.2. Release and Indemnification Covenants 18
ARTICLE IX
Events of Default
Section 9.1.
Events of Default Defined
19
Section 9.2.
Remedies on Default
19
Section 9.3.
Revesting Title in Authority
19
Section 9.4.
No Remedy Exclusive
19
Section 9.5. No Additional Waiver Implied by
One Waiver
Section 9.6. Effect of Termination of Agreement
Section 9.7. Costs of Enforcement
ARTICLE X
Additional Provisions
Section 10.1. Representatives Not Individually Liable
Section 10.2. Restrictions on Use
Section 10.3. Provisions Not Merged With Deed
Section 10.4. Titles of Articles and Sections
Section 10.5. Notices and Demands
Section 10.6. Disclaimer of Relationships
Section 10.7. Modifications
Section 10.8. Counterparts
Section 10.9. Judicial Interpretation
Section 10.10. No Business Subsidy
Section 10.11. Effect of Termination of Agreement
Section 10.12. IRC Section 1031 Exchange
SCHEDULE A
Description of Redevelopment Property and Syndicated Property
SCHEDULE B
Deed
SCHEDULE C
Purchase Agreement
SCHEDULE D
Syndicate Lease
SCHEDULE E
Preliminary Site Plan
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PURCHASE AND DEVELOPMENT AGREEMENT
THIS AGREEMENT, made on or as of the day of , 2013, by and
between the Housing and Redevelopment Authority in and for the City of Hopkins, a public
body corporate and politic (hereinafter referred to as the "Authority"), established pursuant to
Minnesota Statutes, 469.001-469.047 (hereinafter referred to as the "Act"), and having its
principal office at 1010 First Street South, Hopkins, Minnesota 55343, and Mokabaka LLC, a
Minnesota limited liability company (hereinafter referred to as the "Redeveloper"), having its
principal office at 24 Shady Oak Road, Hopkins, Minnesota 55343.
WITNESSETH:
WHEREAS, the Authority was created pursuant to Minnesota Statutes, sections 469.001-
469.047 (the "Act") and was authorized to transact business and exercise its powers by a
resolution of the City Council of the City of Hopkins (the "City") pursuant to the Act; and
WHEREAS, the Authority has established within the City its Redevelopment Project No.
1, a "redevelopment project" as defined in the Act, providing for the development and
redevelopment of certain areas located within the City (which redevelopment project is
hereinafter referred to as the "Project"); and
WHEREAS, the Authority and the Redeveloper have entered into a purchase agreement
(the "Purchase Agreement") under which the Authority has agreed, subject to certain conditions,
to purchase from Redeveloper and Redeveloper has agreed, subject to certain conditions, to sell
to the Authority certain property owned by the Redeveloper (the "Acquired Property"); and
WHEREAS, as additional consideration for the sale by the Redeveloper of the Acquired
Property to the Authority the Authority has agreed to convey another parcel of property acquired
by the Authority (the "Redevelopment Property"); and
WHEREAS, the Redeveloper has agreed that after the Authority conveys the
Redevelopment Property to the Redeveloper the Redeveloper will demolish the improvements
located on the Redevelopment Property and construct a new commercial building on the
Redevelopment Property; and
WHEREAS, the Authority and the Redeveloper desire to enter into this Agreement to set
forth the terms under which the Authority will convey the Redevelopment Property to the
Redeveloper and the Redeveloper's obligations to develop such property through the
construction of improvements thereon.
NOW, THEREFORE, in consideration of the mutual covenants and obligations of the
parties hereto, each of them does hereby covenant and agree with the other as follows:
ARTICLE I
Definitions
Section I.I. Definitions. In this Agreement, unless a different meaning clearly appears
from the context:
"Acquired Property" means the real property to be acquired by the Authority from the
Redeveloper pursuant to the Purchase Agreement, which real property is described in the
Purchase Agreement.
"Act" means Minnesota Statutes, Sections 469.001-469.047, as amended.
"Agreement" means this Agreement, as the same may be from time to time modified,
amended, or supplemented.
"Authority" means the Housing and Redevelopment Authority In and For the City of
Hopkins, or any successor or assign.
"City" means the City of Hopkins.
"County" means Hennepin County, Minnesota.
"County Project" means the expansion and upgrading of Shady Oak Road by the County.
"Deed" means the quit claim deed in the form attached hereto as Schedule B.
"Development Plans" means those plans including site, grading, storm water management,
utility, landscape, building floor plan and building exterior elevations for the Minimum
Improvements that are required for municipal land use and watershed district approvals that may
include planned unit development agreement, conditional use permits, rezoning, platting, and
variances.
"Environmental Assessment" means the phase one environmental assessment obtained by
the Authority concerning the Redevelopment Property and described in Section 3.5 of this
Agreement.
"Event of Default" means an action listed in Section 9.1 of this Agreement.
"Holder" means the owner of a Mortgage.
"Hazardous Substances" means asbestos, urea formaldehyde, polychlorinated biphenyls,
nuclear fuel or materials, chemical waste, radioactive materials, explosives, known carcinogens,
petroleum products and also all dangerous, toxic or hazardous pollutants, contaminates,
chemicals, materials or substances defined as hazardous or as a pollutant or contaminant in, or
the release or disposal of which is regulated by, any Laws or Regulations, as hereafter defined.
Laws or Regulations mean and include the Comprehensive Environmental Response and
Liability Act ("CERCLA" or the Federal Superfund Act) as amended by the Superfund
Amendments and Reauthorization Act of 1986 ("SARA") 42 U.S.C. 9601-9675; The Federal
Resource Conservation and Recovery Act of 1986 ("RCRA"); the Clean Water Act, 33 U.S.C.
1321, et seq.; the Clean Air Act 42 U.S.C. 7401, et seq., all as the same may be from time to time
amended, and any other federal, state, county, municipal, local or other statute, law ordinance or
regulation which may relate to or deal with human health or the environment including, without
limitation, all regulations promulgated by a regulatory body pursuant to any such statute, law or
ordinance.
"Minimum Improvements" means a commercial building of at least 10,000 square feet
together with related and incidental improvements to be constructed by the Redeveloper on the
Redevelopment Property in accordance with the Development Plans and this Agreement.
"Mortgage" means any mortgage made by the Redeveloper which is secured, in whole or
in part, by the Redevelopment Property and which is a permitted encumbrance pursuant to the
provisions of Article VIII of this Agreement.
"Permitted Encumbrances" means reservations of minerals or mineral rights to the State of
Minnesota; public utility, roadway and other easements which will not prevent the development
and use of the Redevelopment Property pursuant to the Redeveloper's Development Plans;
applicable building laws, regulations and ordinances; real estate taxes that Redeveloper agrees to
pay or assume pursuant to this Agreement; restrictions, covenants and easements of record that
do not adversely affect the development and use of the Minimum Improvements; encroachments
of any buildings or improvements located on the Redevelopment Property that are to be
demolished in order to construct the Minimum Improvements; exceptions to title to the
Redevelopment Property which are not found objectionable by Redeveloper upon examination of
the abstract of title or the title insurance commitment to be delivered to the Redeveloper pursuant
to Section 3.4 of this Agreement; the reversionary clause described in Section 9.3 of this
Agreement, the Syndicate Lease, sightline easement and temporary construction easements to be
granted to the County for the construction of the County Project, and the terms and provisions of
this Agreement.
"Project" means the Authority's Redevelopment Project No. 1.
"Project Area" means the real property located within the boundaries of the Project.
"Purchase Agreement" means that certain Purchase Agreement between the Authority, as
buyer, and Redeveloper, as seller, dated as of , 2013, a true and correct copy of
which is attached to this Agreement as Schedule C.
"Purchase Price" means the amount to be paid by the Redeveloper to acquire the
Redevelopment Property from the Authority as described in Section 3.2 of this Agreement.
"Redeveloper" means Mokabaka LLC, a Minnesota limited liability company, its
successors and assigns.
"Redevelopment Property" means the real property described in Schedule A of this
Agreement.
"Site Plan" means the preliminary Site Plan which has been provided to the City and
Authority, which shows the proposed location of the Minimum Improvements.
"State" means the State of Minnesota.
"Syndicate" means Syndicate Sales Corporation, a Minnesota corporation.
"Syndicate Lease" means the lease to be entered into between the Authority and Syndicate
at the time of the closing on the Authority's purchase of the Syndicate Property, the form of
which lease is attached hereto as Schedule D.
"Syndicate Property" means that portion of the Redevelopment Property owned by
Syndicate and legally described as Lot 9, Block 1, Oak Ridge 2nd Addition, Hennepin County,
Minnesota.
"Unavoidable Delays" means delays which are the direct result of acts of God, unforeseen
adverse weather conditions, strikes, other labor troubles, fire or other casualty to the Minimum
Improvements, litigation commenced by third parties which, by injunction or other similar
judicial action, directly results in delays, or acts of any federal, state or local governmental unit
(other than the Authority in enforcing its rights under this Agreement) which directly result in
delays.
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ARTICLE II
Representations
Section 2.1. Representations by the Authority. The Authority makes the following
representations as the basis for the undertaking on its part herein contained:
(a) The Authority is a municipal housing and redevelopment authority organized and
existing under the Act. Under the laws of the State, the Authority has the power to enter into this
Agreement and to perform its obligations hereunder.
(b) The Redevelopment Property is directly accessible to city sanitary sewer, storm
sewer, and water of adequate capacity for the construction of the Minimum Improvements.
(c) To the best of the Authority's knowledge and belief, at the time of execution by the
Authority of this Agreement, there are no environmental proceedings, applications, ordinances,
petitions, court pleadings, resolutions, investigations by public or private agencies, or other
matter pending which could prohibit, impede, delay or adversely affect the use of the
Redevelopment Property for the construction and use of the Minimum Improvements.
(d) To the best of the Authority's knowledge and belief, no investigation,
administrative order, consent order or agreement, litigation, or settlement with respect to
Hazardous Substances is proposed, threatened, anticipated or in existence with respect to the
Redevelopment Property.
(e) There is not pending, nor to the best of the Authority's knowledge is there
threatened, any suit, action or proceeding against the Authority before any court, arbitrator,
administrative agency or other governmental authority that materially and adversely affects the
validity of any of the transactions contemplated hereby, the ability of the Authority to perform its
obligations hereunder, or as contemplated hereby or thereby, or the validity or enforceability of
this Agreement.
(f) To the Authority's best knowledge, except as disclosed in the Environmental
Assessments defined in Section 3.5(a), there are no underground tanks located on the
Redevelopment Property.
(g) Except as disclosed in the Environmental Assessments defined in Section 3.5(a) or
as may be implied from past uses of the Redevelopment Property disclosed in the Environmental
Assessments, the Authority has no actual knowledge of the use of any Hazardous Substances on,
under, or in the Redevelopment Property.
(h) Except for the rights of Syndicate described in Section 4.2(f), any and all leases the
Redevelopment Property shall be terminated and the tenants thereunder shall have vacated the
Redevelopment Property prior to the date of closing. The Authority and/or the landlord under
any such leases shall have delivered any notice of termination to the tenants required under the
terms of the applicable leases and such termination shall be effective prior to the date of closing.
0
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Section 2.2. Representations by the Redeveloper. The Redeveloper represents that:
(a) The Redeveloper is a limited liability company duly organized and in good
standing under the laws of the State, is not in violation of any provisions of its articles of
organization, member control agreement or the laws of the State, has the power to enter into this
Agreement and has duly authorized the execution, delivery and performance of this Agreement
by proper action of its members.
(b) The Redeveloper will construct the Minimum Improvements in accordance with
the terms of this Agreement and all local, state and federal laws and regulations (including, but
not limited to, environmental, engineering, zoning, building code and public health laws and
regulations), except for variances necessary to construct the improvements contemplated in the
Development Plans approved by the Authority.
(c) Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement is prevented, limited by or conflicts with or results in a breach of,
the terms, conditions or provisions of any restriction or any evidences of indebtedness,
agreement or instrument of whatever nature to which the Redeveloper is now a party or by which
it is bound, or constitutes a default under any of the foregoing.
All representations set forth in Section 2.1 and 2.2. of this Agreement shall be true and correct in
all material respects as of the date of closing on conveyance of the Redevelopment Property to
the Redeveloper.
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ARTICLE III
Conveyance of Property
Section 3.1. Development Proposal. The Authority and Redeveloper have entered into the
Purchase Agreement under which the Authority has the right to purchase the Acquired Property
from the Redeveloper. The Authority has also entered into purchase agreements with the owners
of the Redevelopment Property under which the Authority has the right to purchase the
Redevelopment Property. After the Authority acquires the Acquired Property and the
Redevelopment Property, the Authority agrees that it will, subject to the terms and provisions of
this Agreement, sell the Redevelopment Property to the Redeveloper or a qualified intermediary
("1031 Intermediary") necessary for Redeveloper to complete a like kind exchange under
Section 1031 of the Internal Revenue Code. The Redeveloper agrees that after the Authority
conveys the Redevelopment Property to the Redeveloper or the 1031 Intermediary, the
Redeveloper will construct or cause the 1031 Intermediary to construct the Minimum
Improvements on the Redevelopment Property.
3.2 Agreement to Sell. (a) In consideration of the covenants hereinafter set forth and
other valuable consideration, the sufficiency of which is hereby acknowledged, the Authority
agrees to sell and the Redeveloper agrees to buy the Redevelopment Property.
(b) The Purchase Price to be paid by the Redeveloper to acquire the Redevelopment
Property shall be $1.00. The Purchase Price shall be payable in cash at the time of the
conveyance of the Redevelopment Property to the Redeveloper.
Section 3.3. Conditions Precedent to Conveyance. The Authority's obligation to convey
the Redevelopment Property to the Redeveloper and the Redeveloper's obligation to purchase
the Redevelopment Property shall be subject to satisfaction of all of the following conditions
precedent:
(a) The Redeveloper having obtained the requisite approval of the Authority hereunder
and all applicable governmental agencies and instrumentalities, municipal, county, state and
federal, to the development of the Redevelopment Property through the construction of the
Minimum Improvements in accordance with the Redeveloper's Development Plans, including,
without limitation, city approval of storm water, sanitary sewer and water utilities and the
construction of a 10,800 sq. ft. commercial building on the Redevelopment Property
substantially in the form as depicted on the preliminary site plan attached hereto as Schedule E.
(b) The Redeveloper having obtained the following to the extent required: (i)
amendments, revisions, exceptions or changes as may be necessary to applicable zoning codes
and ordinances; (ii) planned unit development or other necessary land use approvals from the
City for the Minimum Improvements, (iii) watershed district approval; (iv) roadway access rights
and permits; (iv) environmental consents, if necessary; (v) approval of the replatting of the
Redevelopment Property; and (vi) all other governmental approvals that are necessary in order to
allow the construction and operation of the Minimum Improvements in accordance with the
Redeveloper's Development Plans.
(c) The Redeveloper having reviewed and approved, or waived any objections to, title
to the Redevelopment Property pursuant to Section 3.4 of this Agreement.
(d) The Redeveloper having provided to the Authority evidence that the Redeveloper
has a firm commitment for financing or has available funds sufficient to finance the acquisition
of the Redevelopment Property and construction of the Minimum Improvements.
(e) The Redeveloper having satisfied itself that the soil conditions on the
Redevelopment Property are acceptable for its purposes.
(f) The Authority having acquired the Redevelopment Property and there are no
restrictions, adverse claims, encumbrances, or actions that would prevent or delay immediate
commencement of construction of the Minimal Improvements, including without limitation, any
leases of the Redevelopment Property that are effective, except for the rights of Syndicate
described in Section 4.2(f), regardless of whether notice of termination has been delivered to the
tenant, any parties who are in possession of the any or all of the Redevelopment Property, or any
protests or lawsuits against the Authority, City or County contesting the redevelopment and
planned expansion of the right-of-way adjacent to the Redevelopment Property.
(g) Except as described in Section 4.2(f) with respect to the Syndicate Property, all
occupants of the Redevelopment Property having been relocated from the Redevelopment
Property.
(h) The Authority's Board of Commissioners having approved the sale of the
Redevelopment Property to the Redeveloper following a public hearing on the question.
(i) The Redeveloper having entered into the parking arrangement described in Section
4.2(g) of this Agreement.
0) , All contingencies under the Purchase Agreement for the Acquired Property have
been satisfied or waived and the parties thereto are prepared to, or have, closed on the sale of the
Acquired Property to the Authority.
(k) All representations and warranties of the Authority under Section 2.1 hereof shall
be accurate and correct as of the date of closing.
The Redeveloper agrees that it will take all commercially reasonable actions necessary to satisfy
the above conditions on or before the date that is six (6) months from the date of this Agreement.
In the event that all of the above conditions precedent have not been satisfied, or waived in
writing by both the Authority and Redeveloper, on or before six (6) months from the date of this
Agreement, either the Authority or Redeveloper may terminate this Agreement by giving written
notice of termination to the other party, whereupon this Agreement shall be null and void and the
Redeveloper and Authority shall execute an instrument in recordable form canceling this
Agreement. Approval by the Authority or City of any documents submitted to it by the
Redeveloper to satisfy the conditions precedent stated in this Agreement shall be in the
8
reasonable discretion of the City and the Authority, respectively. The Authority agrees that it
will hold a public hearing on the sale of the Redevelopment Property to Redeveloper on June 18,
2013.
3.4 Title. The Authority shall, within a reasonable time after the date hereof, finnish to
the Redeveloper an updated abstract of title or, at the Authority's option, a commitment for an
Owner's Policy of Title Insurance with copies of all documents constituting liens or
encumbrances referred to therein. If a commitment is issued such commitment shall be issued by
Commercial Partners Title in the amount of the market value of the Redevelopment Property,
which market value is $ , and shall:
(a) set forth the state of title to the Redevelopment Property together with all exceptions
and conditions to title, including without limitation, all easements, restrictions, rights
of way, covenants, reservations, consents and all other encumbrances affecting the
Redevelopment Property which would appear in the American Land Title
Association ("ALTA") Owner's 1992 Standard Form title insurance policy to be
issued at the time of conveyance of the Redevelopment Property;
(b) include searches covering bankruptcy and state and federal judgments and liens;
and
(c) commit to waive or insure against facts which would be disclosed by a
comprehensive survey of the Redevelopment Property, rights and claims of parties
in possession, and mechanic's and materialmen's liens and lien claims subject to
compliance with customary conditions of closing.
The Redeveloper shall be allowed thirty (30) days after receipt thereof and the survey
information referenced below, whichever is later, for examination of said title and the making of
any objections thereto. Such objections shall be made in writing or shall be deemed waived. If
any objections are so made, the Authority shall undertake all commercially reasonable actions to
cure such objection within ninety (90) days from notice thereof to cure, or cause to be cured the
title defect or exception, either by the removal thereof or by the procurement of title insurance
endorsements satisfactory to Redeveloper providing coverage against loss or damage as a result
of such defect or exception. During any period where the Authority is undertaking to cure an
objection, the time provide for in paragraph 3.3 (e) hereof shall be extended for a like period. If
the Authority does not cure or cause to be cured such title defect or exception to Redeveloper's
satisfaction within said ninety (90) days, the Redeveloper may, at its option, either (i) terminate
this Agreement upon written notice to the Authority upon which this Agreement shall be null and
void and the Redeveloper and the Authority shall execute an instrument in recordable form
canceling this Agreement; or (ii) proceed to close on the acquisition of the Redevelopment
Property in which event the title defect shall be deemed waived. If the Redeveloper proceeds to
acquire the Redevelopment Property, the Authority shall have no further obligations with respect
to any such defects or exceptions.
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If the Authority has furnished the Redeveloper with a title commitment, ten (10) days prior to
closing on the conveyance of the Redevelopment Property to the Redeveloper the Authority shall
cause an updated title conunitment to be furnished to the Redeveloper.
The Authority has furnished to the Redeveloper all surveys that the Authority has in its
possession concerning the Redevelopment Property. To the extent that the Redeveloper desires
an additional survey it will be responsible for obtaining it.
Section 3.5 Demolition; Enviromnental Matters. The Redeveloper agrees that if the
Redevelopment Property is conveyed to the Redeveloper it will be responsible for the demolition
of all structures and improvements located on the Redevelopment and any necessary remediation
of adverse environmental conditions on the Redevelopment Property. The Redeveloper agrees
that it will undertake such demolition and remediation within a time period that will allow the
Redeveloper to meet the construction schedule specified in Section 4.3. The Authority will
provide to the Redeveloper copies of any environmental assessments that it causes to be prepared
regarding the Redevelopment Property. The Authority will reimburse the Redeveloper for the
actual cost of such demolition and remediation activities. The Authority shall have the right,
prior to commencement of the demolition and remediation activities, to review and approve, in
its reasonable discretion, the scope of the demolition and remediation work and to approve the
bids received by the Redeveloper from contractors bidding on such work.
Section 3.6 Closing; Taxes. (a) Closing on the conveyance of the Redevelopment Property
to the Redeveloper shall occur as soon as possible but in no event later than fifteen (15) days
after the satisfaction, or waiver, of the conditions precedent set forth in Section 3.3 of this
Agreement. Time is of the essence.
(b) At closing on conveyance of the Redevelopment Property, the Authority shall
deliver to the Redeveloper: (i) the Deed duly executed and acknowledged, in recordable form,
conveying to the Redeveloper marketable title to the Redevelopment Property subject only to
Permitted Encumbrances; (ii) the abstract or title insurance policy described in Section 3.4 (the
premium for which shall be paid by Redeveloper, the costs of obtaining the commitment for
which shall be paid by the Authority); and (iii) a Seller's Affidavit, in customary form, relative to
judgments, federal tax liens, mechanic's liens and outstanding interests in the Redevelopment
Property.
(c) At the time of conveyance of the Redevelopment Property, the Redeveloper shall
deliver to the Authority the Purchase Price in the manner set forth in Section 3.2 of this
Agreement.
(d) Real estate taxes due and payable in the year of closing shall be apportioned
between the Redeveloper and the Authority as of the date of closing on the conveyance of the
Redevelopment Property, with the result that the Authority shall pay that portion of such taxes
attributable to the period of the year prior to the conveyance and the Redeveloper shall pay that
portion of the taxes attributable to the period of time commencing with the date of conveyance.
Real estate taxes and assessments due and payable in the year 2012 and all prior years and
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deferred real estate taxes (i.e. Green Acres), if any, shall be paid by the Authority. All levied and
pending unpaid special assessments shall be paid by the Authority.
Section 3.7. Access to Property. During the term of this Agreement, the Authority will use
its best efforts to cause the current owners of the Redevelopment Property to permit Redeveloper
and its agents and contractors to access the Redevelopment Property at reasonable times for the
purpose of architectural inspection and design studies, the preparation of a survey, the taking of
such soil borings and environmental assessments, and other due diligence inspections and testing
of the Redevelopment Property as are deemed reasonably necessary by Redeveloper. The
Redeveloper hereby agrees to indemnify, defend, and hold harmless the Authority, its officers,
agents, employees and commissioners from and against any and all damage to property or injury
to person arising out of the Redeveloper's exercise of its right of access to the Redevelopment
Property under this Section. In the event the Redeveloper is denied any access to the
Redevelopment Property that it determines is necessary to conduct its due diligence hereunder,
the Redeveloper may terminate this Agreement by written notice to the Authority. The
Redeveloper shall be entitled to actual possession of the Redevelopment Property on the date of
closing on conveyance of the Redevelopment Property to the Redeveloper. Except as expressly
stated herein, the Authority makes no representations whatsoever as to the, condition of the
Redevelopment Property or the soils thereon or that the same is suitable for the Redeveloper's
proposed development. If the Redeveloper determines to proceed with its acquisition of the
Redevelopment Property it will buy such property "as is", and the Authority shall have no
liability to the Redeveloper on account of any defects with respect thereto:
Section 3.8. Copies of Reports. In the event that there occurs an Event of Default by the
Redeveloper or if the Redeveloper fails to complete the construction of the Minimum
Improvements, the Redeveloper shall furnish to the Authority, at no cost to the Authority, copies
of all reports, assessments, studies, surveys and other documentation prepared on behalf of the
Redeveloper in connection with its proposed acquisition of the Redevelopment Property.
Section 3.9. Lease of Acquired Property. Snap Print, Inc., ("Snap Print") currently is a
tenant at and operates a business on the Acquired Property and intends to move to the Minimum
Improvements when construction of the Minimum Improvements is completed. The Authority
agrees to allow the Snap Print to continue to occupy the Acquired Property until the Redeveloper
has completed construction of the Minimum Improvements. Therefore, at the time of closing on
the conveyance of the Acquired Property to the Authority pursuant to the Purchase Agreement
the Authority and Snap Print will enter into a lease, in the form of the lease attached to the
Purchase Agreement as Exhibit C.
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ARTICLE IV
Construction of Improvements
Section 4.1. Construction of Minimum Improvements. The Redeveloper agrees that it will
construct the Minimum Improvements on the Redevelopment Property in accordance with the
approved Development Plans. Additionally, Redeveloper and its successors or assigns will
operate and maintain, preserve and keep the Minimum Improvements or cause the Minimum
Improvements to be maintained, preserved and kept with the appurtenances and every part and
parcel thereof, in good repair and condition.
Section 4.2. Development Plans. (a) The Authority's willingness to convey the
Redevelopment Property to the Redeveloper is predicated upon and subject to the Redeveloper's
agreement that it will construct the Minimum Improvements and that the Minimum
Improvements will be of such quality and nature as will satisfy the Authority's and City's goals
for the redevelopment of the Redevelopment Property. The Redeveloper understands that the
building being constructed as part of the Minimum Improvements must be at least 10,000 square
feet in size. On or before a date that will allow the conditions contained in subsections 3.3(a)
and (b) to be satisfied within six (6) months from the date of this Agreement, the Redeveloper
shall submit to the City and the Authority applications, together with supporting documentation,
for planned unit development and/or variance approvals, site plan and concept review, and a
preliminary and final plat of the Redevelopment Property as required to permit construction of
the Minimum Improvements; provided that the Authority will be responsible for initiating the
process to plat the Redevelopment Property.
(b) The Redeveloper understands that as a part of the City's planned unit development
approval process the Redeveloper may be required to enter into a planned unit development
agreement detailing the manner in which the Redeveloper will carry out certain aspects of the
construction of the Minimum Improvements. In the event that any term contained in this
Agreement is inconsistent with any term contained in the planned unit development agreement,
the terms of the planned unit development agreement shall govern.
(c) Within a period of time that will allow the Redeveloper to satisfy the condition
contained in subsections 3.3(a) and (b), taking into account the time necessary for review by the
Authority and City, the Redeveloper shall provide to the Authority and the City for their review
and approval Development Plans for the Minimum Improvements and documentation necessary
to obtain all other land use approvals that must be obtained prior to the construction and
operation of the Minimum Improvements. The Development Plans and other documentation
shall provide for the construction of the Minimum Improvements and shall be in conformity with
this Agreement, and all applicable state and local laws and regulations. The Authority shall
approve the Development Plans and other documentation in writing if, in the sole discretion of
the Authority, the proposed Minimum Improvements, including the building materials proposed
to be used, are of such a nature and quality as to justify the Authority's conveyance of the
Redevelopment Property and if they are consistent with the provisions of this Agreement. Such
Development Plans and other documentation shall, in any event, be deemed approved by the
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Authority, but not the City, unless rejected in writing by the Authority, in whole or in part within
thirty (30) days after the date of their receipt by the Authority.
(d) Nothing in this Agreement shall be deemed to relieve the Redeveloper of its
obligation to comply with the requirements of the City's normal land use approval process.
(e) If the Redeveloper desires to make any material change in any Development Plans
after their approval by the Authority, the Redeveloper shall submit the proposed change to the
Authority for its approval. If the Development Plans, as modified by the proposed change,
conform to the requirements of this Agreement and such changes do not materially alter the
nature, quality or exterior appearance of the Minimum Improvements, the Authority shall
approve the proposed change and notify the Redeveloper in writing of its approval. Any
requested change in the Development Plans shall, in any event, be deemed approved by the
Authority unless rejected, in whole or in part, by written notice by the Authority to the
Redeveloper, setting forth in detail the reasons therefor. Such rejection shall be made within ten
(10) days after receipt of the notice of such change.
(f) Syndicate currently operates a business on the Syndicate Property. Pursuant to
the purchase agreement between the Authority and Syndicate, at the time of the closing on the
Authority's purchase of the Syndicate Property, the Authority and Syndicate will enter into the
Syndicate Lease under which Syndicate will lease and occupy the Syndicate Property until the
Redeveloper completes construction of the Minimum Improvements and relocates its business
from the Acquired Property to the Minimum Improvements. When the Redeveloper vacates the
Acquired Property a portion of the building located on the Acquired Property will be demolished
and Syndicate will relocate to the building remaining on the Acquired Property. The
Redeveloper and its contractors have determined that leaving the Syndicate Property occupied
during this period of time will not prevent the development of the Minimum Improvements.
(g) As part of the Minimum Improvements the Redeveloper will construct parking
spaces for the Minimum Improvements. The Authority is undertaking the acquisition of the
Acquired Property and the Redevelopment Property using funds under a program that requires
that the parking constructed on the Redevelopment Property be shared parking. Therefore, prior
to and as a condition to the conveyance of the Redevelopment Property to the Redeveloper, the
Redeveloper agrees that it will enter into a written arrangement with the owners of the VFW
facility located adjacent to the Redevelopment Property allowing the VFW and its patrons to use
the parking to be constructed on the Redevelopment Property. The parking arrangement may,
subject to the approval of the Authority and the County, be terminable upon the transfer by the
VFW of its property to another entity.
Section 4.3. Commencement and Completion of Construction. Subject to Unavoidable
Delays, the Redeveloper shall commence construction of the Minimum Improvements within
sixty (60) days after conveyance of the Redevelopment Property to the Redeveloper and shall
complete construction of the Minimum Improvements within one (1) year after commencement
of construction.
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The Redeveloper agrees that it shall promptly begin and diligently prosecute to completion
construction of the Minimum Improvements within the periods specified in this Section. Until
construction of the Minimum Improvements has been completed, the Redeveloper shall make
construction progress reports, at such times as may reasonably be requested by the Authority as
to the actual progress of the Redeveloper with respect to such construction.
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ARTICLE V
Insurance
Section 5.1. Insurance. The Redeveloper will provide and maintain or cause its
contractors and subcontractors and at all times during the process of constructing the Minimum
Improvements and, from time to time at the request of the Authority, furnish the Authority with
proof of payment of premiums on:
(i) Builder's risk insurance, written on the so-called "Builder's Risk -- Completed
Value Basis," in an amount equal to one hundred percent (100%) of the insurable value of
the Minimum Improvements at the date of completion, and with coverage available in
nonreporting form on the so called "all risk" form of policy; and
(ii) Comprehensive general liability insurance (including operations, contingent
liability, operations of subcontractors, completed operations, Broadening Endorsement
including contractual liability insurance) together with an Owner's Contractor's Policy with
limits against bodily injury and property damage of not less than $2,000,000 for each
occurrence (to accomplish the above -required limits, an umbrella excess liability policy
may be used);
(iii) Worker's compensation insurance, with statutory coverage and employer's liability
protection; and
(iv) Such other insurance as the Authority may reasonably require.
The policies of insurance required pursuant to clauses (i) and (ii) above shall be in form and
content satisfactory to the Authority and shall be placed with financially sound and reputable
insurers licensed to transact business in the State, the liability insurer to be rated A or better in
Best's Insurance Guide. The policies of insurance delivered pursuant to clause (i) and (ii) above
shall contain an agreement of the insurer to give not less than thirty (30) days' advance written
notice to the Authority in the event of cancellation of such policy or change affecting the
coverage thereunder. The Authority shall be named as an additional insured on the liability
policy obtained pursuant to clause (ii) above.
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ARTICLE VI
Prohibited Uses of Minimum Improvements
Section 6.1. Prohibited Uses. The Redeveloper agrees that the Redevelopment Property
and Minimum Improvements, or any portion thereof, shall not be used for the any of the
following uses: adult establishment, adult motion picture theater, adult novelty business or
bookstore, amusement devise establishment, auto sales and\or lease, cabinet, electrical, heating,
plumbing, air conditioning sales or service shop, open sales lot, pawn shop, drive-thru restaurant,
auto repair, warehouse or taxi terminal. This restriction shall run with the title to and
permanently encumber the Redevelopment Property for the benefit of the City and shall be
enforceable by means of an injunction. If the above terms are defined in the City's zoning
ordinances, the terms shall have the meaning contained therein.
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ARTICLE VII
Financing
Section 7.1. Financing. Prior to the Authority's conveyance of the Redevelopment
Property to the Redeveloper and in any event no later than six (6) months after the date of this
Agreement, the Redeveloper shall submit to the Authority evidence, satisfactory to the
Authority, that the Redeveloper has obtained financing or has available and committed funds in
an amount sufficient to pay the cost of acquiring the Redevelopment Property and constructing
the Minimum Improvements.
Section 7.2. Limitation Upon Encumbrance of Property. Prior to the completion of the
Minimum Improvements, as certified by the Authority, neither the Redeveloper nor any
successor in interest to the Redevelopment Property, or any part thereof, shall engage in any
financing or any other transaction creating any mortgage or other encumbrance or lien upon the
Redevelopment Property, whether by express agreement or operation of law, or suffer any
encumbrance or lien to be made on or attach to the Redevelopment Property, except for the
purposes of obtaining funds only to the extent necessary for acquiring and constructing the
Minimum Improvements without the prior written approval of the Authority.
Section 7.3. Subordination. In order to facilitate the Redeveloper's efforts to obtain
financing for acquisition of the Redevelopment Property and construction of the Minimum
Improvements the Authority will agree to reasonable requests from Redeveloper's lenders to
subordinate to the lien of the lenders' mortgages the Authority's rights to revest title to the
Redevelopment Property in the Authority pursuant to Section 9.3 of this Agreement and the
Deed.
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ARTICLE VIII
Prohibitions Against Assignment and Transfer, Indemnification
Section 8.1. Prohibition Against Transfer of Property and Assignment of Agreement. The
Redeveloper represents and agrees that prior to substantial completion of construction of the
Minimum Improvements, except only by way of security for, and only for, the purpose of
obtaining financing necessary to enable the Redeveloper or any successor in interest to the
Redevelopment Property, or any part thereof, to perform its obligations with respect to
constructing the Minimum Improvements under this Agreement, or to complete tax deferred
exchange under Section 1031 of the Internal Revenue Code, and any other purpose authorized by
this Agreement, the Redeveloper (except as so authorized) has not made or created, and will not
make or create, or suffer to be made or created, any total or partial sale, assignment, conveyance,
or lease (other than leases to residential tenants or conunercial/retail tenants), or any trust or
power, or transfer in any other mode or form of or with respect to this Agreement or the
Redevelopment Property or any part thereof or any interest herein or therein, or any contract or
agreement to do any of the same, without the prior written approval of the Authority which shall
not be unreasonably withheld or conditioned.
In the absence of specific written agreement by the Authority to the contrary, no such
transfer or approval thereof by the Authority shall be deemed to relieve the Redeveloper, or any
other party bound in any way by this Agreement from any of its obligations hereunder.
Section 8.2. Release and Indemnification Covenants. (a) The Redeveloper releases from
and covenants and agrees that the Authority and the governing body members, officers, agents,
servants and employees thereof shall not be liable for and agrees to indemnify and hold harmless
the Authority and the governing body members, officers, agents, servants and employees thereof
against any loss or damage to property or any injury to or death of any person occurring at or
about or resulting from any defect in the Minimum Improvements.
(b) Except for any willful misrepresentation or any misconduct of the following named
parties, the Redeveloper agrees to protect and defend the Authority and City and the governing
body members, officers, agents, servants and employees thereof, now or forever, and further
agrees to hold the aforesaid harmless from any claim, demand, suit, action or other proceeding
whatsoever by any person or entity whatsoever arising or purportedly arising from this
Agreement, or the transactions contemplated hereby or the acquisition, construction, installation,
ownership, and operation of the Redevelopment Property and Minimum Improvements.
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ARTICLE IX
Events of Default
Section 9.1. Events of Default Defined. The term 'Event of Default" shall mean, whenever
it is used in this Agreement (unless the context otherwise provides); (i) any failure by a party to
observe or perform any covenant, condition, obligation or agreement on its part to be observed or
performed hereunder or (ii) a material breach of any representation set forth herein on or prior to
the closing on conveyance of the Redevelopment Property.
Section 9.2. Remedies on Default. Whenever any Event of Default occurs, the non -
defaulting party may immediately suspend its performance under this Agreement and may take
any one or more of the following actions after providing thirty (30) days written notice to the
defaulting party of the Event of Default, but only if the Event of Default has not been cured
within said thirty (30) days or, if the Event of Default is by its nature incurable within said thirty
(30) days, the defaulting party has not provided reasonable assurances to the non -defaulting parry
that the Event of Default will be cured and that it will be cured as soon as reasonably possible:
(a) Terminate this Agreement.
(b) Take whatever action, including legal, equitable or administrative action, which
may appear necessary or desirable to collect any payments due under this Agreement, or to
enforce performance and observance of any obligation, agreement, or covenant under this
Agreement.
Section 9.3. Revesting of Title in Authority. If the Redeveloper fails to commence or
complete construction of the Minimum Improvements within the periods specified in Section 4.3
of this Agreement the Authority shall have the right to cancel the sale of the Redevelopment
Property to the Redeveloper, whereupon title to the Redevelopment Property shall revert to the
Authority. Upon revesting title to the Redevelopment Property in the Authority, the Authority
will use its best efforts to resell the Redevelopment Property, or parcel thereof, for
redevelopment and shall use the proceeds of such a resale to first, reimburse itself for all of its
costs incurred in enforcing its rights under this Agreement, in clearing title to the Redevelopment
Property, and in reselling the Redevelopment Property, and second, to reimburse the
Redeveloper for the purchase price paid by the Redeveloper to acquire the Redevelopment
Property and for any costs incurred by the Redeveloper in constructing the Minimum
Improvements. The deed from the Authority to the Redeveloper shall convey title to the
Redevelopment Property subject to a right of reversion reserved to the Authority as described in
this Section. The terms of this Section 9.3 are subject to the terms of Section 7.3 hereof.
Section 9.4. No Remedy Exclusive. No remedy herein conferred upon or reserved to the
Authority or Redeveloper is intended to be exclusive of any other available remedy or remedies,
but each and every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Agreement or now or hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing upon any default shall impair any
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such right or power or shall be construed to be a waiver thereof, but any such right and power
may be exercised from time to time and as often as may be deemed expedient. In order to entitle
the Authority or the Redeveloper to exercise any remedy reserved to it, it shall not be necessary
to give notice, other than such notice as may be required in this Article IX.
Section 9.5. No Additional Waiver Implied by One Waiver. In the event any agreement
contained in this Agreement should be breached by either party and thereafter waived by the
other parry, such waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other concurrent, previous or subsequent breach hereunder.
Section 9.6. Effect of Termination of Agreement. In the event that this Agreement is
terminated pursuant to Section 9.2, all provisions hereof shall terminate except that Sections 3.9,
9.7, and 8.2 shall survive such tennination and any cause of action arising hereunder prior to
such termination shall not be affected.
Section 9.7. Costs of Enforcement. Whenever any Event of Default occurs and the non -
defaulting party shall employ attorneys or incur other expenses for the collection of payments
due or to become due or for the enforcement of performance or observance of any obligation or
agreement on the part of the other party under this Agreement, the defaulting party agrees that it
shall, within ten (10) days of written demand by the non -defaulting party pay to the non -
defaulting party the reasonable fees of such attorneys and such other expenses so incurred by the
non -defaulting party.
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ARTICLE X
Additional Provisions
Section 10.1. Representatives Not Individually Liable. No member, official, or employee
of the Authority shall be personally liable to the Redeveloper, or any successor in interest, in the
event of any default or breach or on any obligations under the terms of the Agreement.
Section 10.2. Restrictions on Use. The Redeveloper agrees for itself, and its successors
and assigns, and every successor in interest to the Redevelopment Property, or any part thereof,
that the Redeveloper, and such successors and assigns, shall comply with the restrictions on use
contained in Section 6.1 of this Agreement. The deed transferring the Redevelopment Property
to the Redeveloper shall contain a covenant so restricting the use of the Property.
Section 10.3. Provisions Not Merged With Deed. None of the provisions of this Agreement
are intended to or shall be merged by reason of any deed transferring any interest in the
Redevelopment Property and any such deed shall not be deemed to affect or impair the
provisions and covenants of this Agreement.
Section 10.4. Titles of Articles and Sections. Any titles of the several parts, Articles, and
Sections of the Agreement are inserted for convenience of reference only and shall be
disregarded in construing or interpreting any of its provisions.
Section 10.5. Notices and Demands. Except as otherwise expressly provided in this
Agreement, a notice, demand, or other communication under the Agreement by either party to
the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail,
postage prepaid, return receipt requested, or delivered personally; and
(a) in the case of the Redeveloper, is addressed to or delivered personally to the
Redeveloper at 24 Shady Oak Road, Hopkins, Minnesota 55343; and
(b) in the case of the Authority, is addressed to or delivered personally to the Authority
at 1010 First Street South, Hopkins, Minnesota 55343,
or at such other address with respect to either such party as that party may, from time to time,
designate in writing and forward to the other as provided in this Section. Mailed notice shall be
deemed to have been delivered two (2) business days after being deposited with the U.S. Postal
Service.
Section 10.6. Disclaimer of Relationships. The Redeveloper acknowledges that nothing
contained in this Agreement nor any act by the Authority or the Redeveloper shall be deemed or
construed by the Redeveloper or by any third person to create any relationship of third -party
beneficiary, principal and agent, limited or general partner, or joint venture between the
Authority and the Redeveloper and/or any third party.
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Section 10.7. Modifications. This Agreement may be modified solely through written
amendments hereto executed by the Redeveloper and the Authority.
Section 10.8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
Section 10.9. Judicial Interpretation. Should any provision of this Agreement require
judicial interpretation, the court interpreting or construing the same shall not apply a presumption
that the terms hereof shall be more strictly construed against one party by reason of the rule of
construction that a document is to be construed more strictly against the party who itself or
through its agent or attorney prepared the same, it being agreed that the agents and attorneys of
both parties have participated in the preparation hereof.
Section 10.10. No Business Subsidy. The Authority has determined that its conveyance of
the Redevelopment Property to the Redeveloper is being done as partial consideration for the
Redeveloper's sale of the Acquired Property to the Authority and that, therefore, it does not
constitute a "business subsidy" under the Minnesota Business Subsidy Act, Minnesota Statutes,
Sections 116J.993 to 116J.995
Section 10.11. Effect of Termination of Agreement. In the event that this Agreement is
terminated in accordance with the terms hereof, such termination shall have no effect on the
Purchase Agreement or on the rights of the Authority to acquire the Acquired Property in
accordance with the terms of the Purchase Agreement.
Section 10.12. IRC Section 1031 Exchange. Redeveloper has advised the Authority that
Redeveloper may elect to effectuate a like kind exchange transaction under Section 1031 of the
Internal Revenue Code. The Authority agrees to cooperate with Redeveloper in effectuating
Redeveloper's Section 1031 Exchange, and agrees Redeveloper may assign Redeveloper's
interest in this Agreement to the 1031 Intermediary for that purpose, provided the Authority shall
not be required .to incur or suffer, and Redeveloper agrees to hold the Authority harmless from
any expense, liability or obligation in connection with Redeveloper's Section 1031 Exchange.
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IN WITNESS WHEREOF, the Authority has caused this Agreement to be duly executed
in its name and behalf and the Redeveloper has caused this Agreement to be duly executed in its
name and behalf on or as of the date first above written.
STATE OF MINNESOTA)
)SS.
COUNTY OF HENNEPIN)
HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY
OF HOPKINS, MINNESOTA
By:
Its: Executive Director
By:
Its: Chair
MOKABAKA LLC
By
By
The foregoing instrument was acknowledged before me this _ day of , 2013, by
and , the Executive Director and Chair of the Housing and
Redevelopment Authority In and For the City of Hopkins, a public body politic and corporate
under the laws of the state of Minnesota.
STATE OF MINNESOTA)
COUNTY OF HENNEPIN)
and
Notary Public
)SS.
The foregoing instrument was acknowledged before me this _ day of , 2013, by
and , the
the company.
of Mokabaka LLC, a Minnesota limited liability company, on behalf of
23
Notary Public
SCHEDULE A
Description of Redevelopment Property
Redevelopment Property:
Lots 9, 10 and 11, Block 1, Oak Ridge 2nd Addition, Hennepin County, Minnesota, except for
right-of-way to be conveyed to the County for the County Project, currently delineated as
follows:
A permanent easement for highway purposes over all that part of the following described tract:
Lot 9, Block 1, Oak Ridge 2nd Addition,
which lies easterly of the following described line:
Commencing at the northeast corner of the Southwest Quarter of the Southeast Quarter of
Section 23, Township 117, Range 22; thence run southerly along the east line of said
Southwest Quarter of the Southeast Quarter on an assumed bearing of South 3
degrees 09 minutes 36 seconds West for 380.00 feet; thence North 86 degrees 50
minutes 24 seconds West for 85.33 feet; thence South 4 degrees 07 minutes 13
seconds West for 83.26 feet to a point on a tangential curve, concave to the east having
a radius of 3058.67 feet and a central angle of 4 degrees 37 minutes 12 seconds, said
point is the point of beginning of the line being described; thence southerly along the
arc of said curve a distance of 246.63 feet, thence South 0 degrees 29 minutes 59
seconds East tangent to said curve for 45.97 feet to the south line of said Lot 9 and
said line there terminating.
Also a temporary easement for construction purposes over all that part of the above described
tract which lies easterly of the following described line:
Commencing at the northwest corner of said Lot 9; thence run easterly along the north
line of said Lot 9 for 125.34 feet to the point of beginning of the line being described;
thence southerly, deflecting right 90 degrees 04 minutes 19 seconds for 49.41 feet; thence
easterly, deflecting left 85 degrees 47 minutes 13 seconds for 3.13 feet; thence southerly,
deflecting right 85 degrees 52 minutes 56 seconds to the south line of said Lot 9 and said
line there terminating.
A permanent easement for highway purposes over all that part of the following described tract:
Lots 10 and 11, Block 1, Oak Ridge 2nd Addition,
which lies easterly of the following described "Line 1":
Commencing at the northeast corner of the Southwest Quarter of the Southeast Quarter of
Section 23, Township 117, Range 22; thence run southerly along the east line of said
Southwest Quarter of the Southeast Quarter on an assumed bearing of South 3 degrees 09
minutes 36 seconds West for 380.00 feet; thence North 86 degrees 50 minutes 24 seconds
West for 85.33 feet; thence South 4 degrees 07 minutes 13 seconds West for 83.26 feet to
a point on a tangential curve, concave to the east having a radius of 3 05 8.67 feet and a
central angle of 4 degrees 37 minutes 12 seconds; thence southerly along the arc of said
curve a distance of 246.63 feet, to the point of beginning of "Line 1" being described;
thence South 0 degrees 29 minutes 59 seconds East tangent to said curve for 46.58 feet to
a point on a tangential curve, concave to the west having a radius of 2267.16 feet and a
central angle of 2 degrees 27 minutes 16 seconds; thence southerly along the arc of said
curve a distance of 97.12 feet; thence South 1 degree 57 minutes 17 seconds West tangent
to said curve for 41.77 feet; thence South 48 degrees 54 minutes 51 seconds West for
25.76 feet to the south line of said Lot 11 and said "Line 1" there terminating.
Also a permanent easement for sightline purposes over all that part of the above described tract
which lies westerly of the above described "Line 1" and easterly of the following described line:
Commencing at the point of termination of said "Line P; thence North 48 degrees 54
minutes 51 seconds East along said "Line 1" for 18.96 feet to the point of beginning of
the line being described; thence North 4 degrees 35 minutes 15 seconds East for 94.23
feet to the north line of said Lot 11 and said line there terminating.
Also a temporary easement for construction purposes over all that part of the above described
tract which lies southerly, southeasterly and easterly of the following described line:
(for the purpose of the following described temporary easement the west line of said Lot
11 has an assumed bearing of South 3 degrees 24 minutes 25 seconds West)
Commencing at the northwest corner of said Lot 11; thence run southerly along the west line of
said Lot 11 on an assumed bearing of South 3 degrees 24 minutes 25 seconds West for 80.25 feet
to the point of beginning of the line being described; thence South 70 degrees 16 minutes 06
seconds East for 44.28 feet to a point on a tangential curve, concave to the north having a radius
of 193.77 feet and a central angle of 12 degrees 36 minutes 00 seconds; thence easterly along the
arc of said curve a distance of 42.61 feet, thence South 82 degrees 52 minutes 06 seconds East
for 28.24 feet; thence North 51 degrees 21 minutes 54 seconds East for 20.60 feet; thence North
3 degrees 36 minutes 58 seconds East for 137.97 feet to the north line of said Lot 10 and said
line there terminating.
SCHEDULE B
QUIT CLAIM DEED
THIS INDENTURE, between the Housing and Redevelopment Authority In and For the
City of Hopkins, Minnesota, a public body corporate and politic created pursuant to the Laws of
Minnesota (the "Grantor"), and Mokabaka LLC, a Minnesota limited liability company (the
"Grantee").
WITNESSETH, that Grantor, in consideration of the sum of
Dollars ($ ) and other good and valuable consideration the receipt whereof is hereby
acknowledged, does hereby grant, bargain, quitclaim and convey to the Grantee, its successors
and assigns forever, all the tract or parcel of land lying and being in the County of Hennepin and
State of Minnesota described as follows, to -wit (such tract or parcel of land is hereinafter
referred to as the "Property"):
To have and to hold the same, together with all the hereditaments and appurtenances
thereunto belonging in any wise appertaining, to the said Grantee, its successors and assigns,
forever,
Provided:
SECTION 1.
It is understood and agreed that this Deed is subject to the covenants, conditions,
restrictions and provisions of an agreement entered into between the Grantor and Grantee, as of
the _ day of 2013, identified as "Purchase and Development
Agreement " (hereafter referred to as the "Agreement") which Agreement is incorporated herein
and made a part hereof by reference. In the event of a conflict between this Deed and the
Agreement, the Agreement shall control.
This provision, however, shall in no way prevent the Grantee from mortgaging this
Property in order to obtain funds for the purchase of Property hereby conveyed and for erecting
improvements thereon in conformity with the Agreement, any applicable redevelopment plan
and applicable provisions of the Zoning Ordinance of the City of Hopkins, Minnesota.
It is specifically agreed that the Grantee shall promptly begin and diligently prosecute to
completion the redevelopment of the Property through the construction of the improvements
thereon, as provided in the Agreement.
Promptly after completion of the improvements in accordance with the provisions of the
Agreement, the Grantor will filmish the Grantee with an appropriate instrument so certifying (the
"Certificate of Completion"). The Certificate of Completion by the Grantor shall be (and it shall
be so provided in the certification itself) a conclusive deternlination of satisfaction and
termination of the agreements and covenants of the Agreement and of this Deed with respect to
the obligation of the Grantee, and its successors and assigns, to construct the improvements and
the dates for the beginning and completion thereof. The Certificate of Completion and such
determination shall not constitute evidence of compliance with or satisfaction of any obligation
of the Grantee to any holder of a mortgage, or any insurer of a mortgage, securing money loaned
to finance the purchase of the Property hereby conveyed or the improvements, or any part
thereof.
The Certificate of Completion and any other certifications provided for herein shall be in
such form as will enable them to be recorded with the County Recorder, or Registrar of Titles,
Carver County, Minnesota. If the Grantor shall refuse or fail to provide any such certification in
accordance with the provisions of the Agreement and this Deed, the Grantor shall, within thirty
(30) days after written request by the Grantee, provide the Grantee with a written statement
indicating in adequate detail in what respects the Grantee has failed to complete the
improvements in accordance with the provisions of the Agreement or is otherwise in default, and
what measures or acts it will be necessary, in the opinion of the Grantor, for the Grantee to take
or perform in order to obtain such certification.
N WON m re)MOA
In the event the Grantee herein shall, prior to the completion of construction of the
improvements under the Agreement as evidenced by the recording of the Certificate of
Completion for such unit, hereinabove referred to:
(a) Fail to begin construction of the improvements provided for in this Deed
and the Agreement in conformity with the Agreement and such failure is not due to
unavoidable delays (as defined in the Agreement) and such failure is not cured within
thirty (30) days after written notice to do so; or
(b) Default in or violate its obligations with respect to the construction of the
improvements provided for in this Deed and the Agreement, or shall abandon or
substantially suspend construction work, and such default, violation or failure is not due
to unavoidable delays (as defined in the Agreement), and any such default or violation,
abandonment or suspension shall not be cured, ended or remedied within thirty (30) days
after written demand by the Grantor so to do; or
(c) Fail to pay real estate taxes or assessments on the Property or any part
thereof when due, or shall place thereon any encumbrance or lien unauthorized by the
Agreement with the Grantor, or shall suffer any levy or attachment to be made, or any
materialmen's or mechanic's liens, or any other unauthorized encumbrances or liens to
attach, and such taxes or assessments shall not have been paid or the encumbrance or lien
removed or discharged, or provisions satisfactory to the Grantor made for such payments,
removal or discharge, within thirty (30) days after written demand by the Grantor so to do
provided, that if the Redeveloper shall first notify the Grantor of its intention to do so, it
may in good faith contest any mechanics' or other lien filed or established and in such
event the Grantor shall permit such mechanics' or other lien to remain undischarged and
unsatisfied during the period of such contest and any appeal, but only if the Grantee
provides the Grantor with evidence acceptable to the Grantor that the Grantee's title
insurance company will insure over the lien or provides a bank letter of credit in the
amount of the lien, in a form satisfactory to the Grantor pursuant to which the bank will
pay to the Grantor the amount of any lien in the event that the lien is finally determined to
be valid and during the course of such contest the Grantee shall keep the Grantor
informed respecting the status of such defense; or
(d) Cause in violation of the Agreement or of this Deed, any transfer of the
Property or any part thereof that is not approved by the Grantor in accordance with the
terms of the Agreement, and such violation shall not be cured within sixty (60) days after
written demand by the Grantor to the Grantee; or
(e) Fail to comply with any of its covenants under the Agreement and fail to
cure any such noncompliance within thirty (30) days after written demand to do so; or
(f) Default under the terms of a mortgage loan authorized by Article VII of
the Agreement and the holder of the mortgage exercises any remedy provided by the
mortgage documents or exercises any remedy provided by law or equity in the event of a
default in any of the terms or conditions of the mortgage and such default is not cured by
the later of the applicable notice and cure period of such mortgage or sixty (60) days after
written demand by the Grantor;
then the Grantor shall have the right to re-enter and retake title to and possession of the Property
and to terminate and revest in the Grantor the estate conveyed by this Deed to the Grantee, its
assigns or successors in interest, subject to the terms and conditions of the Agreement, but only if
the events stated in Section 2(a) -(f) have not been cured within the time periods provided above,
or if the events cannot be cured within such time periods, the Redeveloper does not provide
assurances to the Authority, reasonably satisfactory to the Authority, that the events will be cured
and will be cured as soon as reasonably possible.
SECTION 3.
The Grantee agrees for itself and its successors and assigns to or of the Property or any
part thereof, hereinbefore described, that the Grantee and such successors and assigns shall at all
times:
(a) Devote the Property to, and only to and in accordance with the uses
specified in any applicable redevelopment plan adopted by the Authority as amended and
extended, provided that no amendment shall prohibit a pre-existing permitted use;
(b) Comply with all of the terms and conditions of the Agreement.
(c) Not use the Property for any of the following uses: adult establishment,
adult motion picture theater, adult novelty business or bookstore, amusement devise
establishment, auto sales and\or lease, cabinet, electrical, heating, plumbing, air
conditioning sales or service shop, open sales lot, pawn shop, drive-thru restaurant, auto
repair, warehouse or taxi terminal.
It is intended and agreed that the above and foregoing agreements and covenants shall be
covenants running with the land, and that they shall, in any event, and without regard to technical
classification or designation, legal or otherwise, and except only as otherwise specifically
provided in this Deed and the Agreement, be binding, to the fullest extent permitted by law and
equity for the benefit and in favor of, and enforceable by, the Grantor, its successors and assigns,
and any successor in interest to the Property, or any part thereof against the Grantee, its
successors and assigns, and every successor in interest to the Property, or any part thereof or any
interest therein, and any party in possession or occupancy of the Property or any part thereof.
In amplification, and not in restriction of, the provisions of the preceding section, it is
intended and agreed that the Grantor and its successors and assigns shall be deemed beneficiaries
of the agreements and covenants provided herein. Such agreements and covenants shall run in
favor of the Grantor without regard to whether the Grantor has at any time been, remains, or is an
owner of any land or interest therein to, or in favor of, which such agreements and covenants
relate. The Grantor shall have the right, in the event of any breach of any such agreement or
covenant to exercise all the rights and remedies, and to maintain any actions or suits at law or in
equity or other proper proceedings to enforce the curing of such breach of agreement or
covenant, to which it or any other beneficiaries of such agreement or covenant may be entitled.
The covenants and agreements of this Deed and the Agreement shall be enforceable only by
Grantor, the City of Hopkins, Minnesota, and any public body which is a successor of Grantor.
SECTION 4.
This Deed is also given subject to:
(a) Provision of the ordinances, building and zoning laws of the City of Hopkins,
state and federal laws and regulations in so far as they affect this real estate.
(b) Taxes payable subsequent to the date of this conveyance.
SECTION 5.
The Grantor certifies that the Grantor does not know of any wells on the subject property.
IN WITNESS WHEREOF, the Grantor has caused this Deed to be duly executed in its
behalf by its Executive Director this day of 92013.
HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY
OF HOPKINS, MINNESOTA
By:
Its: Executive Director
By:
Its: Chair
STATE OF MINNESOTA)
)ss.
COUNTY OF HENNEPIN)
The foregoing instrument was acknowledge before me this day of
, 2013, by and , the Executive
Director and Chair of the Housing and Redevelopment Authority In and For the City of Hopkins,
Minnesota, a public body politic and corporate, on behalf of the Authority.
Notary Public
This instrument was drafted by:
BRADLEY & DEIKE, P.A.
4018 West 65t' Street, Suite 100
Edina, Minnesota 55435.
SCHEDULE C
Purchase Agreement
SCHEDULE D
Syndicate Lease
SCHEDULE E
Preliminary Site Plan